State v. Chyle, Cr. N

• Decision Date: 06 October 1980
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Harold CHYLE, Defendant and Appellant. o. 716.
• Court: North Dakota Supreme Court

Page 409

297 N.W.2d 409

STATE of North Dakota, Plaintiff and Appellee, v. Harold CHYLE, Defendant and Appellant.

Cr. No. 716.

Supreme Court of North Dakota.

Oct. 6, 1980.

F. C. Rohrich, State's Atty., Linton, for plaintiff and appellee State of North Dakota.

Frank J. Wikenheiser, of Wheeler, Wolf, Wefald, Peterson & McDonald, Linton, for defendant and appellant.

VANDE WALLE, Justice.

Harold Chyle appeals from a conviction of criminal mischief by a jury in the district court in Emmons County on February 28, 1980.

Before discussing and deciding the merits of Chyle's appeal it is necessary to decide the State's motion to dismiss this appeal.

On August 21, 1980, the State, under North Dakota Rule of Appellate Procedure 27, filed with this court a motion to dismiss Chyle's appeal. As its ground for dismissal the State alleges that Chyle failed to give notice of appeal within 10 days of entry of judgment as provided by North Dakota Rule of Appellate Procedure 4(b). ¹

The record shows that the original judgment and order deferring imposition of sentence in this case was filed on February 29, 1980. An amended criminal judgment and order deferring imposition of sentence was filed on March 5, 1980. On March 14, 1980, Chyle filed a notice of appeal "from the judgment of the above named Court entered on March 5, 1980, ..." This notice of appeal was filed 14 days after the original criminal judgment and nine days after the amended criminal judgment was filed.

In support of its motion to dismiss, the State relies on State v. Lesmeister, 293 N.W.2d 875 (N.D.1980). Lesmeister, however, dealt with an issue which is not present in the current motion. In Lesmeister, the appellant argued that because there was no proof he had received notice of entry of the judgment, as provided by Rule 49(c), North Dakota Rules of Criminal Procedure, the 10 days within which to file a notice of appeal should not have begun to run, and insisted that his appeal should be heard even though it was filed 16 months after judgment. In Lesmeister we quoted directly from Rule 49(c), N.D.R.Crim.P., that:

"... Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted by Rule 37(b) of these rules and Rule 4(b) of the N.D.R.App.P."

We then found that the appellant had provided no justification for concluding that there was an exception applicable to his appeal to be found in Rule 37(b) of the North Dakota Rules of Criminal Procedure ² or Rule 4(b) of the North Dakota Rules of Appellate Procedure. State v. Lesmeister, supra, 293 N.W.2d at 876.

In the present case, Chyle does not claim that he is entitled to any exception for an extension of the time for appeal. He claims only that the 10-day notice of appeal time limit should not begin to run from the time the original judgment was filed, February 29, 1980, but rather from the time the amended judgment was filed, March 5, 1980.

While the original judgment did not address the issue of restitution, the amended judgment filed on March 5, 1980, contained In light of the fact that the amended judgment in this case did not go to the essence of Chyle's conviction, it would appear that he may have been the beneficiary of several extra days in which to decide whether or not to file an appeal. However, to strictly interpret Rule 4(b), N.D.R.App.P., and its counterpart, Rule 37(b), N.D.R.Crim.P., as applying to an original judgment, rather than a final judgment, could have the effect of working an injustice on a potential appellant where the subsequent amended judgment proved particularly onerous or came at a time beyond 10 days after the original judgment had been filed. These possibilities, linked with the fact that Chyle specifically stated that he was appealing "from the judgment of the above named Court entered on March 5, 1980, ..." lead us to deny the State's motion to dismiss the appeal.

a provision relating to restitution as authorized by Section 12.1-32-07(2)(e), N.D.C.C. A provision for restitution in a sentence to probation should, where appropriate, be encouraged and we do not criticize the trial court for including the provision in an amended judgment.

FACTS AND ISSUES

On October 30, 1979, Chyle was charged with criminal mischief in violation of Section 12.1-21-05(2)(a), N.D.C.C. On December 6, 1979, the State moved to amend its complaint to reduce the charge to a Class A misdemeanor under Section 12.1-21-05(2)(b). ³ The evidence introduced during the trial showed that on the night of October 24, 1979, Chyle and two companions, Ronald Herr and Alfred Gross, met in Linton, North Dakota, and later went driving in Herr's car. Between 12 midnight and 12:30 a. m. the trio stopped at Holzer's gas station so that Herr could use the restroom. After Herr stopped his car at the gas station and while he was walking away, Chyle slid over to the driver's seat. Gross testified that Chyle drove the car to the parking lot of the T & R Warehouse, a retail grocery store located adjacent to the gas station, and did a "cookie" in the parking lot. When asked to explain, Gross responded: "Well, he drove towards the Warehouse and stepped on it and turned towards the highway and did a complete U-turn and came back again." Gross also testified that he heard the wheels spinning and "heard gravel" while Chyle was performing this "cookie." On cross-examination Gross testified that he was never sure just how close the car came to the T & R Warehouse. Herr also testified, but indicated he heard neither spinning tires nor flying rocks as Chyle was driving Herr's car. Neither Gross nor Herr was aware of any broken glass on the store front of T & R Warehouse that night.

Chyle testified in his own behalf and gave an account of his driving Herr's car which directly contradicted the testimony of Gross.

Upon arriving for work on the morning of October 25, 1979, Ron Schumacher, co-owner of the T & R Warehouse, noticed rocks strewn about the concrete portion of the store's parking lot. This portion extends 25 feet from the store to where the graveled portion begins. Schumacher also noticed that five of the large windows on the front of the store facing the parking lot had holes in them and that the remaining two windows were chipped. The State later produced undisputed evidence that damage had been done to the windows and that the damage amounted to.$3,294.

At the close of the State's case the defense moved for judgment of acquittal under Rule 29 of the North Dakota Rules of Criminal Procedure. This motion was denied. At that time the trial judge asked if there were any objections to the jury instructions. There were no objections.

Before submitting the matter to the jury the trial judge defined for it "criminal mischief" under Section 12.1-21-05(2)(b), N.D.C.C. The jury was told:

"A person is guilty of an offense if he:

"Willfully damages personal property of another.

"The offense is:

"b. A class A misdemeanor if the actor recklessly causes pecuniary loss in excess of two thousand dollars ...

"A person engages in conduct 'willfully' if he engages in the conduct-recklessly.

" 'Recklessly' is defined as conduct engaged in in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct."

Following this definition, the trial court further elaborated with regard to "mental state":

"The intent or purpose with which an act is done is a mental process and as such generally remains hidden in the mind where it is conceived, and is rarely, if ever, susceptible of proof by direct evidence. Intent may be inferred from the outward manifestations, by the words or acts of the party entertaining it, and the facts and circumstances surrounding or attending upon the acts sought to be proved, with which it is charged to be connected. It is presumed, however, that an unlawful act was done with an unlawful intent."

Chyle raises three issues on appeal:

1. Did the district court err when it denied Chyle's motion for judgment of acquittal on the ground that the evidence was insufficient to support a conviction?

2. Did the district court err when it instructed the jury: "It is presumed, however, that an unlawful act was done with an unlawful intent"?

3. Did the above-mentioned instruction amount to obvious error reviewable under Rule 52(b), N.D.R.Crim.P., even though no objection was made to the instruction at trial?

I

This court's position on the sufficiency of evidence to sustain a conviction by a jury if challenged on appeal was recently restated in State v. Bartkowski, 290 N.W.2d 218, 220 (N.D.1980), where we referred to State v. Moe, 151 N.W.2d 310 (N.D.1967), which held that in determining whether or not the evidence is sufficient to support a jury verdict the evidence must be viewed in the light most favorable to the verdict.

In his motion for judgment of acquittal Chyle contended that the State had failed to produce evidence sufficient to sustain a conviction. Chyle argued that there had been no connection established between him and any of the acts involved in the breaking of the windows at the T & R Warehouse. He further argued that no evidence had established that he was driving the car on the night in question and that even if that had been established, there was no proof that his manner of driving caused the glass to break.

In State v. Olmstead, 246 N.W.2d 888 (N.D.1976), this court reviewed its function on appeal where a defendant alleges insufficiency of the evidence to support a verdict of guilty. That review included a variety of descriptions the court had used in deciding whether or not to reverse factual findings of juries or trial judges. The review concluded with the statement:

"However stated, these rules indicate a recognition...